Episode 5: Jon’s Description of a White Collar/Investigations Practice
By Ronald J. Coleman
Our fifth episode, “Anti-Corruption Compliance: Bribery & FCPA”, features guest speakers Jim McCurry, Jon Kolodner, and Lisa Vicens. I asked our guests what a “white collar and investigations practice” is. Jon said:
“I’ve also heard it called an enforcement practice, and maybe just at a higher level, white collar crime refers to criminal conduct that involves financial gain, typically non-violent. What we’re talking about today, bribery, also fraud, theft of money, insider trading, crimes committed through the internet, cybercrime, money laundering. I think those are all part of the white collar crime world. A defense and investigations practice, like the one that Lisa and I are a part of, and where we often work with folks like Jim, in his forensic world, we represent companies and individuals in these kinds of investigations. Typically involves the U.S. Department of Justice, but state criminal authorities can also be involved. The reason I mentioned enforcement is because it’s not just criminal, typically, it often involves enforcement actions that are brought by regulators like the Securities and Exchange Commission, the CFTC, the State Attorneys General, and even antitrust regulators. They can often be global, too, and involve regulators outside of the United States. I think collectively, those agencies, authorities, will seek to penalize companies and, as you mentioned at the beginning, impose significant penalties for violating the law. These often can be civil actions, if it’s an enforcement matter, and could be criminal, if it involves criminal authorities. There are typically significant financial penalties, and of course, for individuals, individuals face jail time, and that’s obviously a very significant penalty for them. We defend our clients in these kinds of investigations. They typically want the authority not to bring an action or a charge, and if we can’t convince them of that, then we’ll defend the case and try to either negotiate a favorable resolution or, in some instances we’ll go to trial. Companies will often also ask us to do internal investigations when they’ve identified misconduct themselves or when they learned about it from an outside source, like an authority or regulator coming to them and asking them for materials and documents and saying they’ve started an investigation. It could be just a newspaper report, or even whistleblower raising an issue internally within a company. In that circumstance we’ll do the investigation, often we’ll work with forensic firms like EY, and present our results to management and the board so they can decide what steps to take. I think an important part of our practices is that companies hire us to do that, in part, because we can do it under the attorney client privilege, which provides protection from disclosure to third parties of the investigation, and I think that’s an important part of what we do. I think there’s also an advisory side of our practice and which is a growing part of what we do, which is to provide advice to companies on their compliance programs, we’ll talk more about that later today, on controls, to detect and prevent wrongdoing, and that’s a big part of what we do as well.”
Interested in hearing more? Check out Episode 5 here (available October 28, 2021).